Cherry v. Wertheim

• Citation: 25 S.W.2d 118
• Decision Date: 04 March 1930
• Docket Number: No. 20987.,20987.
• Parties: CHERRY v. WERTHEIM.
• Court: Missouri Court of Appeals

25 S.W.2d 118

CHERRY v. WERTHEIM.

No. 20987.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Suit by J. T. Cherry against William Wertheim. Judgment for plaintiff, and defendant appeals.

Affirmed.

Orren Wilson, of Cape Girardeau (Arthur W. Lilienstein, of Petersburg, Ill., of counsel), for appellant.

Spradling & Dalton, of Cape Girardeau, for respondent.

BENNICK, C.

This is a proceeding labeled "a bill in equity to vacate judgment and for injunction," which was instituted in the circuit court of Cape Girardeau county on March 2, 1928. The facts and circumstances of the case, as they were developed at the hearing, were fully and accurately set forth in the course of the bill itself, which reads as follows:

"Now on this day comes the plaintiff, J. T. Cherry, and for his cause of action on this, the first amended, bill against the defendant states:

"That the defendant, by and through his attorney of record, Orren Wilson, on or about the 17th day of December, 1927, in the Circuit Court of Cape Girardeau County, Missouri, filed a suit against this plaintiff based upon a certain note dated November 8, 1915, for the principal sum of eight hundred sixty-four and 50-100 ($864.50), said note being due three (3) months after date with interest at the rate of six per cent. (6%) per annum; that no payments were ever made on the principal or interest of said note as disclosed by said note and the petition thereon.

"That said suit was filed in the Circuit Court of Cape Girardeau county, Missouri, returnable to the January Term, 1928; that on the day said suit was filed, the printed docket for the January term, 1928, of said Court had already gone to press, and said cause did not appear on the printed docket for said term; that said petition was filed as aforesaid, and on the last day for service to the said January term, 1928, of said Court, and summons duly issued and served by the sheriff of Cape Girardeau county, Missouri; that the record of the service, as shown by the return of the sheriff, showed that service was had `by leaving a copy of the within writ and annexed petition as furnished me by the clerk of the Circuit Court of Cape Girardeau county, Missouri, for the within named J. T. Cherry, at his usual place of abode, with a member of the family, over the age of fifteen years, namely, his wife, Nellie Cherry.'

"That on the date aforesaid, plaintiff was not at home, but was working at another place in the city of Cape Girardeau; that when the sheriff called, Nellie Cherry was at the office and wrapping room of the plaintiff, and his residence in said city, and the said Nellie Cherry was engaged in preparing floral offerings for the funeral of one Otto Frederick, deceased, and was greatly rushed with said work; that the said Nellie Cherry did not know W. F. Schade, sheriff, who delivered the aforesaid copy of petition and summons to her; that same was handed to her while she was engaged in her work; that she did not make any examination of the papers handed to her to ascertain what they were; that the said sheriff did not disclose his name or his business nor inform her what the papers were; that she did not know it was a petition or summons, or know that her husband had been sued, or that the sheriff of the county had delivered the paper to her; that she did not give the papers to her husband, nor advise him that any papers had been left to be handed to him; that she did not know of, expect, or anticipate any suit against her husband, and did not know that he had been sued.

"That plaintiff never saw the papers that had been handed to his wife while she was engaged in the preparation of said floral offerings, she having laid them aside and continued with her work; that plaintiff never knew that a suit had been instituted against him; that plaintiff did not know that the sheriff had been to his residence, or had left a copy of petition and summons; that plaintiff was not expecting a suit to be instituted; that plaintiff did not know, and had no opportunity to know, that a suit had been filed against him; that plaintiff saw nothing about the filing of the suit or the judgment thereon in the papers; that plaintiff without any fault, negligence, or misconduct on his part, or those of his servants or agents, had no opportunity to be present or to make any defense to said suit so filed.

"That thereafter, to-wit: on the 11th day of January, 1928, the said defendant, by his attorney aforesaid, took judgment by default in the said Circuit Court against this plaintiff on the aforesaid note for the sum of fourteen hundred forty-three and 71-100 ($1443.71) dollars, together with costs and interest at the rate of six per cent (6%) per annum; * * * that during the continuance of said term, plaintiff was not informed and had no knowledge that any judgment or said judgment had been rendered against him; that thereafter said January term, 1928, of said Court, adjourned, and a short time later one, J. Grant Frye, an attorney, told one, Colby Cherry, a son of plaintiff, that he, the said J. Grant Frye, was present in the Circuit Court at the January term, 1928, thereon, and had heard one, Orren Wilson, as attorney, take a judgment for some one by default against this plaintiff, in some kind of a suit.

"That thereupon, plaintiff made an investigation and found that judgment had been rendered as aforesaid, and that plaintiff thereupon immediately employed an attorney and filed a motion to vacate said judgment, together with the bill in equity to vacate and set aside the same.

"The said judgment taken by default by said defendant and against this plaintiff was rendered by accident, mistake, and inadvertence, and that said accident, mistake, and error was in the inception of said judgment; that plaintiff by accident, mistake, inadvertence, unavoidable casualty, and misfortune as hereinbefore set out was prevented and denied an opportunity to appear and defendant said cause, and plaintiff without any fault or neglect whatever on his part was wholly denied and prevented from knowing that said action was pending, or that a judgment had been rendered during said January term as aforesaid.

"That plaintiff has a good and sufficient defense to said suit instituted on said note, and a complete defense to the cause of action pleaded in said petition and on said note, to-wit: the statute of limitations; that no action was prosecuted on said note within ten (10) years after the cause of action on said note accrued, and that said note was completely barred by the statute of limitations; that no payment of principal or interest was ever made on said note, and said note became due and payable three (3) months after the 8th day of February, 1916, and has been due and delinquent more than ten (10) years, and is wholly barred by virtue of said statute of limitations, to-wit: Section 1316, Revised Statutes of Missouri, 1919.

"Plaintiff has a further defense to said note, to-wit: that the same was secured by fraud and misrepresentations as to the ages and quality of certain horses which plaintiff purchased from the defendant; that said horses were not of the ages and quality for which plaintiff contracted, but were old and worthless stock, and said representations were made and said property ordered by mail, and were not as represented, and plaintiff further has as a defense to said note, the failure of consideration thereof. * * *

"That by reason of the accident, mistake, and inadvertence hereinbefore set out external to the plaintiff and of which his own agency was not the proximate cause, the defendant secured said judgment against plaintiff and plaintiff become subjected to the liability of the same, and that it would be a violation of good conscience and equity for defendant to retain said judgment, and an injustice has been done, so that it is against conscience for defendant to retain and hold said judgment.

"Wherefore, the premises considered, plaintiff prays the Court by its order, judgment, and decree to vacate, set aside, and hold for naught, the aforesaid judgment obtained by the defendant as aforesaid against this plaintiff at the January term, 1928, of this Court, and that the Court by its order, judgment, and decree will enjoin, restrain, and prohibit the defendant, his agents, servants, and employees from endeavoring to collect and enforce the collection of the judgment aforesaid, and plaintiff prays for a temporary injunction, pending the final hearing of this cause, and plaintiff prays for such other and further relief as to the Court may seem meet and proper."

Appended to the bill was the affidavit of plaintiff that the matters and things stated therein were true and correct according to his best knowledge, information, and belief; and along with such affidavit was the affidavit of S. P. Dalton, one of plaintiff's attorneys, that he had delivered a copy of the bill on June 7, 1928, to Orren Wilson, attorney of record for the defendant.

At the return term of the bill, the cause was removed by defendant to the federal court, by which it was subsequently remanded to the state court; and, after numerous dilatory pleas had been disposed of, defendant, on May 6, 1929, filed his answer in the terms of a general denial.

A trial was thereupon had, resulting in a finding by the court that the judgment sought to be vacated had been rendered by accident, mistake, and inadvertence; that said accident, mistake, and error was in the inception of the judgment; that plaintiff, though duly served with process according to law, had had no opportunity to defend the cause on the merits, or to know that such cause was pending against him; that plaintiff's failure to have defended said cause was not due to any negligence on his...